MP High Court Upholds Order Rejecting Specific Performance Suit Noting That Plaintiff Was Never 'Ready & Willing' To Perform His Part

The Madhya Pradesh High Court upheld a trial court order which dismissed the plaintiff's suit for specific performance with respect to sale of a property after finding that he was never ready and willing to perform his part of the contract with respect to purchasing the property. The high court remarked that there was a distinction between readiness and willingness; while Readiness means that the plaintiff had sufficient to means to pay the outstanding consideration amount as well as to bear the registration charges, willingness means that the plaintiff is willing to perform his part of contract.Justice GS Ahluwalia observed:"Readiness and Willingness are two different aspects and both are required to be proved by Plaintiff. Readiness means that the plaintiff had sufficient...means to pay the outstanding consideration amount as well as to bear the registration charges, whereas willingness means that the plaintiff is willing to perform his part of contract". BackgroundThe appellant/plaintiff had approached the District Court seeking specific performance of the contract, regarding the lands belonging to the defendants 1, 2 and 3, in Dabra, District Gwalior. The defendants entered into and executed an agreement to sell a property at ₹15,500 per Bigha to the appellant. The appellant had paid ₹50,000 by way of advance, and the remaining amount was to be paid upon execution of the sale deed. Per the agreement, the sale deed was to be executed on June 1, 1989; however, it was not executed. The defendants in the agreement to sell had mentioned that the property was not under mortgage. On May 30 and June 1, 1989, the appellant visited the office of the Sub Registrar and alleged that he found out that the property was mortgaged and that the loan was outstanding. Therefore, he claimed, the sale deed could not be executed. The appellant, thereafter, requested the defendants to execute the sale deed and also offered to redeem their mortgage if the defendants were ready to adjust the same in consideration amount. However, the defendants did not agree and did not provide a No Dues Certificate from the bank. Her claimed that since the appellant was ready and willing to perform his part of the contract, he sent a notice to the defendants, but no action for execution was taken. The appellant filed a civil suit, but the plaint was returned on grounds of jurisdiction, against which an appeal was pending. On November 24, 1991, the defendants specifically refused to execute the sale deed and a suit for specific performance of the contract.The defendants, in their written statement, admitted the execution of the agreement to sell. It was pleaded that the appellant was not ready and willing to perform his part, claiming to be short on funds. It was claimed that they had visited the office of the Sub Registrar, but the appellant did not appear. It was claimed that the appellant had purchased stamp papers for the execution of a sale deed in favour of Sunita Savlani and Basant Kumar, which were not known to the defendants. Therefore, there was no privity of contract between the defendants and Sunita and Basant. It was claimed that the appellant had forged documents in the name of Sunita and Basant with a dishonest intention. It was claimed that no application for a refund of the stamp paper amount was made by Sunita and Basant. No mention of the stamp paper purchase was made before the civil judge. It was additionally claimed that the mortgage was already redeemed, but no offer was ever made by the appellant about repaying the mortgage and adjusting the same towards the consideration amount. The trial court held that the appellant was never ready and willing to perform his part of the contract. Challenging the trial court judgment, the appellant approached the High Court. FindingsExamining the facts of the case, the court observed that the appellant never appeared before the office of the Sub-Registrar on 30-5-1989, to execute the sale deed. Additionally, except for mentioning the possession of the disputed property, no other documentary evidence was produced. The appellant had also failed to file a copy of his bank statement or an income tax return to show that he had sufficient money. The court also rejected the contention regarding payment of the consideration amount, noting that in view of Section 269SS of the Income Tax Act, any payment in excess of Rs. 20,000 cannot be made in cash. Further, it was clear that the appellant never purchased any stamp paper for the execution of this particular sale deed.On the appellant's contention that the defendants misrepresented that the property is free from all encumbrances the court said that Section 19 Contract Act makes it clear that if an agreement is caused by fraud or misrepresentation, then it is voidable at the instance of party whose consent was obtained by fraud. The court said that the plaintiff could have refused to go ahead with agreement to sell by claiming that it has been ...

MP High Court Upholds Order Rejecting Specific Performance Suit Noting That Plaintiff Was Never 'Ready & Willing' To Perform His Part

Jayanti Pahwa

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